European Parliament adopts deeply flawed unitary patent, gives up
power over innovation policy

on: 2012-12-11

Today, the European Parliament has adopted a proposal to create a patent with
unitary effect for Europe. This decision will leave Europe with a patent system
that is both deeply flawed and prone to overreach. It also ends democratic
control of Europe's innovation policy.

"We are disappointed that so many MEPs were prepared to throw
Europe's researchers and innovators under the bus just to achieve a deal, any
deal" says Karsten Gerloff, President of the Free Software Foundation Europe.
"It is natural that after nearly four decades of discussions on a single patent
system for Europe, most of those involved simply want the debate to end. But we
would have expected more of our elected representatives."

Intense criticism from all sides

In adopting the proposal, MEPs chose to disregard intense criticism of the
proposal from all sides of the debate. Patent lawyers, independent legal experts, SMEs and civil society groups such as FSFE all voiced their concerns to MEPs ahead of the vote.
FSFE recognises the important work done by some MEPs, in particular the
Greens/EFA, in informing their colleagues about the serious flaws in the proposal.

With this decision, the European Parliament has essentially given up its power
to shape Europe's innovation policy. That power will instead fall to the European
Patent Office, which has a track record of awarding monopoly powers on the widest
possible range of subject matter.

"We are alarmed to see both legislative and executive power in the
hands of a single agency" says Karsten Gerloff. "The separation of powers is a
fundamental principle of democracy. We regret that in today's vote, many MEPs
were prepared to give this up in exchange for an ill-conceived compromise."

Software patents, fragmentation and confusion

The text adopted today will lead to fragmentation of jurisdiction and of
jurisprudence across the European Union. Creating divergence and confusion,
the text will make the patent system much harder to navigate for small and
medium enterprises. The European Patent Office will have much greater leeway
to continue its practice of granting patents on software. This will harm competition
and innovation, and create unnecessary risks for businesses and software
developers. It is also likely that the adopted text will lead to more intense
patent litigation in Europe, including by patent trolls.

FSFE is also concerned about the lack of a research exception and of a provision
for compulsory licenses. According to the Max Planck Institute for "Intellectual
Property", the envisioned patent court is incompatible with European Union law. These
fundamental flaws mean that considerable uncertainty remains about the way in
which the patent system will operate in future.

Next steps

According to the European Parliament's website, "the international agreement
creating a unified patent court will enter into force on 1 January 2014 or after
thirteen contracting states ratify it, provided that UK, France and Germany are
among them. The other two acts would apply from 1 January 2014, or from the date
when the international agreement enters into force, whichever is the latest.
Spain and Italy are currently outside the new regime, but could decide to join
in at any time."